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Case 2:06-cr-00035-MCE

Document 124

Filed 12/19/2006

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MARK J. REICHEL, Bar #155034 Attorney At Law

 

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655 University Ave., Suite 215 Sacramento, California 95825

 

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Attorney for Defendant ERIC MCDAVID

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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NO. CR-S-06-0035-MCE

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Plaintiff,

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NOTICE OF MOTION AND MOTION

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FOR DISCOVERY ORDER REQUIRING

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v.

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PRODUCTION OF ALL

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SURVEILLANCE DATA AND

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MATERIAL OF THIS DEFENDANT

ERIC MCDAVID, et al.

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OBTAINED THROUGH ALL

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GOVERNMENT DOMESTIC SPYING,

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HARVESTING AND MINING

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Defendants.

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PROGRAMS; MEMORANDUM OF

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POINTS AND AUTHORITIES IN SUPPORT THEREOF

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DATE: February 2, 2007 TIME: 2:00 p.m. JUDGE: HON. KIMBERLY J. MUELLER

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TO: MCGREGOR SCOTT, United States Attorney, and R. STEVEN

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LAPHAM, Assistant United States Attorney:

 

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Please take notice that on the above date and time, or

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soon thereafter as counsel may be heard, defendant, through

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counsel, will move the Court to order discovery as set forth

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in this motion and the attached memorandum of points and

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authorities.

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This motion is based on the instant motion, the attached

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Motion for production of evidence of

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domestic surveillance and spying

 

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memorandum in support of the motion, and any evidence or

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argument presented before or at the hearing on the motion.

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Dated: December 19, 2006.

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Respectfully submitted,

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/s/

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MARK J. REICHEL Attorney for Defendant

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Motion for production of evidence of domestic surveillance and spying

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Case 2:06-cr-00035-MCE

Document 124

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MOTION

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I. INTRODUCTION In the 1970s, Congressional hearings revealed that government agencies including the NSA had been for years conducting warrantless electronic eavesdropping, maintaining watchlists of purely domestic political dissidents, and using official secrecy policies to preserve their ability to monitor and investigate Americans outside the established boundaries of the Constitution and the laws of the nation. At that time, such well-intentioned men as J. Edgar Hoover feared the threat of Communism and "racial extremists" bent on "destroying our present form of government." Today, equally well-intentioned government officials fear the threat of "eco-terrorists" and animal rights "extremists" and “anarchists” at home. It is perhaps not surprising then that history is repeating itself, and that leaks to the media have led to a series of dramatic disclosures that the NSA is engaging once again in a program of warrantless data-gathering on a massive scale that encompasses not only foreign signals intelligence, but also data and information related to the purely domestic telephone calls and internet activities of Americans at home. 1 This round of warrantless surveillance of Americans on U.S. soil began shortly after September 11, 2001, and was subsequently authorized by the President by written directive

1 In well publicized cases, it is now known that P.E.T.A., Mothers For Peace, and other revolutionary cells are the victims of this spying. So is The ACLU and the National Association of

Criminal Defense Lawyers, two organizations of which the author of this motion very proudly belongs.

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in 2002. The government has conceded that its surveillance

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and interception program extends to electronic communications

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by telephone, internet, or other means in which one party is

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in the United States and one party is not.

It also admits to

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intercepting communications when both parties were in the

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United States. And while the full scope of the government's

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electronic surveillance and interception programs have yet to

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be disclosed, there are strong indications that it goes well

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beyond what the government has thus far confirmed to the

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public.

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There are at least two very logical reasons to believe

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that the government's surveillance programs extend to persons

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the government claims are connected to or know about

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activities claimed by the Earth Liberation Front (ELF) or the

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Animal Liberation Front (ALF). First, the government has

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repeatedly identified the ELF and ALF as "extremist" and

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"terrorist" movements, and it has asserted that the ELF and

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ALF "have become the most active criminal extremist elements

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in the United States." Animal Rights: Activism vs.

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Criminality: Hearing before the Senate Judiciary Committee,

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108th Cong. 2nd Sess. 3 (May 18, 2004) (testimony of John E.

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Lewis, Deputy Asst. Director, Counterterrorism Division,

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FBI). The government consistently characterizes acts of

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sabotage and arson claimed by the ELF and the ALF as

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"terrorism." Second, the government has repeatedly noted

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international ties in its analyses of the ELF and ALF. In

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Congressional testimony, the FBI has described the origins of

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the groups in Great Britain. The government repeatedly

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asserts that individual defendants who are ELF or ALF related

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receive financial support from outside the United States and

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that they would find safe haven with cohorts in other

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countries were they to flee.

 

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In this case, the criminal complaint on file states just

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that.

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Thus, while the government has not specifically

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identified ELF and ALF, and those with philosophical

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sympathies to ELF/ALF, as targets of any secret, warrantless

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monitoring, or surveillance, the unequivocal assertions that

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the defendant in this case is among the most serious domestic

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terrorist threats the nation faces, coupled with claims of

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international connections and support, make any purported

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member of the ELF or ALF a prime target of a comprehensive

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program to monitor the communications of "terrorists." And

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if, as communications insiders claim, the monitoring goes

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significantly beyond what the government has been free to

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publicly admit - if it intentionally sweeps in purely

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domestic communications and purposely harvests data for

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"mining" and analysis - then there can be no credible claim

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that the communications activity of the defendants has not

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been captured, analyzed, and retained.

 

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The government has publicly stated that Mr. McDavid is

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an ELF member and an ALF member.

 

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Electronic communications information and material, such

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as call data, e-mail, and internet activities, that is

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related to these defendants and that has been gathered or

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mined by the NSA or any other agency is discoverable under

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Fed. R. Crim. P. 16(a)(e)(i) and (iii), as well as Brady and

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Kyles. The government prosecutors have an affirmative duty

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to obtain this data and turn it over to the defense.

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II. BACKGROUND ON THE NSA SURVEILLANCE PROGRAM

 

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It has been scarcely 12 months since the media broke its

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silence regarding NSA's warrantless surveillance program. As

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detailed below, media reports were followed by government

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admissions of some aspects of the program, while other

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aspects remain shrouded in mystery or simply “unconfirmed.”

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The disclosures have led to several lawsuits, an outpouring

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of concern among elected officials, and a profusion of

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scholarly opinions on the legality of the surveillance and

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eavesdropping.

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It appears that, in reality, there is more than one

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program. The NSA has been authorized by the President to

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eavesdrop on specific communications between persons in the

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United States and persons outside the United States, where

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agency analysts believe it will lead them to terrorists. In

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addition, the NSA has launched a massive electronic

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communication data-harvesting operation, which requires the

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cooperation of major telecommunications facilities. Both

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programs have led to the interception of purely domestic

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data; in the case of the latter program, there is no

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indication in publicly available documents that the system is

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even designed to screen out purely domestic communications.

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As also noted below, there are strong indications that there

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are yet other programs, the scope and details of which have

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yet to be publicly revealed in any way.

 

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A.

Disclosure of the NSA's Warrantless Electronic Surveillance Program

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The New York Times first reported on December 16, 2005

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that sometime after September 11, 2001, President Bush

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"secretly authorized the National Security Agency to

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eavesdrop on Americans and others inside the United States to

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search for evidence of terrorist activity without the

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court-approved warrants ordinarily required for domestic

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spying." James Risen and Eric Lichtblau, Bush Lets U.S. Spy

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on Callers Without Courts, The New York Times (Dec. 16,

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2005). The program, according to the authors, allowed the

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NSA to conduct warrantless eavesdropping on people in the

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United States who were linked, directly or indirectly, to

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suspected “terrorists” through a chain of phone numbers and

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e-mail addresses. See id. The authors stated, however, that

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officials had told them that warrants were still required for

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eavesdropping on entirely domestic communications. Id.

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A day after the story broke, the President confirmed that

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the NSA was engaged in warrantless surveillance. In his

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weekly radio address, President Bush stated:

 

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In the weeks following the terrorist attacks on our

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nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to

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intercept the international communications of people with known links to al Qaeda and related terrorist

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organizations. Before we intercept these communications, the government must have information that establishes a

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clear link to these terrorist networks.

 

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President's Radio Address (December 17, 2005), at

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http://www.whitehouse.gov/news/releases

 

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/2005/12/20051217.html.

 

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As described by administration officials in the days

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after the disclosures, the NSA Program involves neither a

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court nor a Justice Department official in determining which

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communications to intercept and which persons to monitor.

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Rather, these decisions are made by an NSA employee, who need

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not be a lawyer. According to Lieutenant General Michael V.

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Hayden (USAF), "[t]he judgment is made by the operational

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work force at the National Security Agency using the

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information available to them at the time, and the standard

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that they apply - and it's a two-person standard that must be

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signed off by a shift supervisor, and carefully recorded as

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to what the operational imperative to cover any target, but

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particularly with regard to those inside the United States."

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Press Briefing by Attorney General Alberto Gonzales and

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General Michael Hayden, Principal Deputy Director for

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National Intelligence, at 8 (Dec. 19, 2005)

 

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On May 11, 2006, USA Today reported that the NSA was

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also secretly harvesting phone call records of "tens of

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millions of Americans," with the assistance of some of the

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nation's largest telecommunications carriers, such as AT&T,

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BellSouth, and Verizon. Leslie Cauley, “NSA Has Massive

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Database Of Americans' Phone Calls,” USA Today (May 11, 2006)

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This program, like the warrantless eavesdropping program,

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started shortly after the attacks of September 11, 2006. Id.

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The NSA requested, and apparently obtained, "call-detail

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records," which are a complete listing of the calling

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histories of millions of customers. Id. As the authors

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noted, the NSA's domestic program is far more expansive than

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what the White House had acknowledged in December 2005. Id.

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Shortly after the revelation of the NSA's call database and

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data-mining program, Seymour Hersh of The New Yorker wrote

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about disclosures made to him by intelligence officials. An

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insider at a major telecommunications carrier explained that

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the company had "set up a top-secret high-speed circuit

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between its main computer complex" and a government

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intelligence computer center. The effect was to provide the

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government "total access to all the data." Seymour M. Hersh,

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“Listening In,” The New Yorker (May 29, 2006). The NSA was

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also eavesdropping, without warrants, on callers to

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investigate them, in some cases without even going to the

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FISA court, for fear of having to reveal details of the

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program. See id. See also Lichtblau & Risen, “Eavesdropping

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Effort Began Soon After Sept. 11 Attacks,” The New York Times

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(December 18, 2005) ("In the early years of the operation,

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there were few, if any, controls placed on the activity by

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anyone outside the security agency, officials say. It was

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not until 2004, when several officials raised concerns about

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its legality, that the Justice Department conducted its first

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audit of the operation. Security agency officials had been

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given the power to select the people they would single out

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for eavesdropping inside the United States without getting

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approval for each case from the White House or the Justice

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Department, the officials said.")

 

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Mark Klein, who was working as a technician at AT&T's

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San Francisco facility when the NSA's data-harvesting

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technology was installed, issued a statement that was

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published by Wired Magazine. He explained that

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In 2003 AT&T built "secret rooms" hidden deep in the bowels

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of its central offices in various cities, housing computer

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gear for a government spy operation which taps into the

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company's popular WorldNet service and the entire internet.

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These installations enable the government to look at every

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individual message on the internet and analyze exactly what

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people are doing. Documents showing the hardwire installation

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in San Francisco suggest that there are similar locations

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being installed in numerous other cities.

 

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“Whistle-Blower's Evidence, Uncut,” Wired (May 22, 2006), at

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http://www.wired.com/news/

 

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technology/0,70944-0.html?tw=wn_index_18. As outlined in

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detail by Mr. Klein in his statement, as well as in documents

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filed in the pending case of Hepting v. AT&T, No. C06-672 VRW

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(N.D. Cal.), AT&T installed "splitters" to divide the signal

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on high-speed fiber-optic circuits carrying communications

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traffic on AT&T's "common backbone." Id. See also, Hepting,

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Order Denying Motion to Dismiss at 23-24 (July 20, 2006).

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The effect of splitting the signal and rerouting a portion of

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it to the NSA is that the agency is given access to wholly

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domestic electronic communications information of hundreds of

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thousands, if not millions, of Americans. See, e.g., Eric

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Lichtblau and James Risen, “Domestic Surveillance: The

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Program; Spy Agency Mined Vast Data Trove, Officials Report,”

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The New York Times (December 24, 2005) (explaining that

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access to the switches that route electronic communications

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would be significant, because, in the words of Phil Karn, a

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computer engineer and technology expert, "'what you're really

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talking about is the capability of an enormous vacuum

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operation to sweep up data.'")

 

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The present administration has formally confirmed the

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existence of the data-harvesting and mining aspects of the

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NSA Program. Some pending litigation, such as the Hepting

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class action noted above, has focused, so far, on whether the

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government may rely on the state secrets privilege in order

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to preclude public confirmation, or negation, of aspects of

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the Program. However, many have interpreted Mr. Gonzales'

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public citation of Smith v. Maryland, 442 U.S. 735 (1979), in

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defense of presidential authority to obtain the data without

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a warrant or court order, as tacit admission that the

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data-mining will continue. See Walter Pincus, “Gonzales

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Defends Phone-Data Collection,” The Washington Post (May 24,

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2006). See also “Hayden Insists NSA Surveillance Is Legal,”

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The Associated Press (May 18, 2006) (explaining that during

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his confirmation hearing, Gen. Hayden would only talk about

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the part of the program the President had confirmed; asked if

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it was the whole program, he responded "I'm not at liberty to

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talk about that in open session.")

 

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B.

Reaction to the Disclosure of the NSA Program of Warrantless Surveillance

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In the aftermath of the disclosure of the NSA Program, a

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group of constitutional scholars, law professors and former

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government officials delivered an open letter to Congress,

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challenging the government's asserted legal justification for

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the NSA Program. They explained:

 

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“Although the program's secrecy prevents us from being privy

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to all of its details, the Justice Department's defense of

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what it concedes was secret and warrantless electronic

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surveillance of persons within the United States fails to

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identify any plausible legal authority for such surveillance.

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Accordingly, the program appears on its face to violate

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existing law.” Letter from Curtis A. Bradley and others to

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Sen. Bill Frist an others, at 2 (Jan. 9, 2006) (hereafter

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"Curtis Letter") Other legal commentators and legislators

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reached the same conclusion. On January 5, 2006, the

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Congressional Research Service, the non-partisan public

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policy research arm of Congress, issued a memorandum to

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members of Congress on the subject.

Elizabeth B. Bazan and

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Jennifer K. Elsea, “Presidential Authority to Conduct

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Warrantless Electronic Surveillance to Gather Foreign

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Intelligence Information, Congressional Research Service”

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(Jan. 5, 2006) (hereafter "CRS Presidential Authority Memo").

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The 44-page document provides a comprehensive legal analysis

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of the administration's justification for the NSA Program,

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concluding that it, "as presented in the summary analysis

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from the Office of Legal Affairs, does not seem to be as

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well-grounded as the tenor of that letter suggests." CRS

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Presidential Authority Memo, at 44. The authors stated that

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[I]t appears unlikely that a court would hold that Congress

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has expressly or impliedly authorized the NSA electronic

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surveillance operations here under discussion, and it would

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likewise appear that, to the extent that those surveillances

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fall within the definition of "electronic surveillance"

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within the meaning of FISA or any activity regulated under

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Title III, Congress intended to cover the entire field with

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these statues. Id.

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Members of Congress from both parties called for an

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investigation into the NSA Program, and government's legal

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justification for it. See, e.g., Statement of Senator

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Patrick Leahy (D-Vt.), Ranking Member, Senate Judiciary

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Committee, Hearing On "NSA III: War Time Executive Power and

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the FISA Court" (March 28, 2006); Brian Knowlton, “Specter

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Says Surveillance Program Violated the Law,” International

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Herald Tribune (February 5, 2006) (quoting Sen. Arlen Specter

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stating that the administration's legal justifications for

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the NSA Program were "strained and unrealistic," and that the

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NSA Program "is in flat violation of the Foreign Intelligence

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Surveillance Act")

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Then, both the NSA itself and the Department of Justice

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Office of Professional Responsibility initiated

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investigations. See Dan Eggen, “Probe Set In NSA Bugging,”

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The Washington Post (January 11, 2006) The OPR investigation

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was terminated when the Justice Department lawyers were

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denied the security clearances necessary to review the role

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of DOJ lawyers in the NSA Program. In mid-July, Attorney

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General Gonzales testified that the decision to deny the

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security clearances necessary for the investigation to

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proceed was made by the President. See Dan Eggen, “Bush

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Thwarted Probe into NSA Wiretapping,” The Washington Post

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(July 19, 2006).

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In addition to Congressional hearings, aborted

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investigations, and broad-based expressions of concern among

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former government officials and legal scholars, the NSA

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Program has generated litigation, both in the context of

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ongoing criminal cases and in the civil courts. See, e.g.,

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ACLU v. NSA (E.D. Mich.), filed Jan. 17, 2006; Hepting v.

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AT&T, (C.D. Cal.), filed Jan. 31, 2006; Electronic Privacy

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Information Center v. Department of Justice, (D.D.C.), filed

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Jan. 19, 2006. In August, The Honorable Anna Diggs Taylor

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ruled in ACLU v. NSA that the NSA Program, at least those

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portions of it which have been confirmed by the

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administration, violates the First and Fourth Amendment and

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statutory law. ACLU v. NSA, Order on Motion for Permanent

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Injunction, Case No. 06-CV-10204 (E.D.Mich. August 17, 2006)

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C.

What Data and Material the NSA Program, and Others Like It, Capture and Maintain

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The defense seeks discovery of any and all information,

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data, and material obtained through warrantless surveillance

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conducted by government agencies, including the NSA. It is

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important, therefore, to understand what is known about the

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types of data that have been captured and obtained through

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the NSA Program.

 

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1.The NSA Program Captures Purely Domestic

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Communications Data

 

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The NSA Program, whether by accident or design, has

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intercepted wholly domestic calls. As reported late last

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year on the heels of the initial revelations of the NSA

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Program's existence, officials admitted that "some purely

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domestic communications have been captured because of the

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technical difficulties of determining where a phone call or

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e-mail message originated." See Scott Shane, “News of

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Surveillance Is Awkward for Agency,” The New York Times

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(December 22, 2005); As Seymour Hersh reported in The New

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Yorker, the NSA began, in some cases, to eavesdrop on callers

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(often using computers to listen for key words) or to

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investigate them using traditional police methods. A

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government consultant told [Hersh] that tens of thousands of

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Americans had had their calls monitored in one way or the

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other. "In the old days, you needed probable cause to listen

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in," the consultant explained. "But you could not listen in

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to generate probable cause. What they're doing is a

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violation of the spirit of the law." Seymour Hersh,

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“Listening In,” The New Yorker (May 29, 2006)"[O]fficials

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familiar with [the NSA Program said it] eavesdrops without

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warrants on up to 500 people in the United States at any

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given time. The list changes as some names are added and

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others dropped, so the number monitored in this country may

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have reached into the thousands since the program began,

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several officials said." See “Bush Lets U.S. Spy On Callers

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Without Courts”, supra.

 

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Data mining. Beyond the parameters of the warrantless

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interception aspects of the Program, there remains the NSA's

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resort to data-mining. As to this effort, as described by

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witnesses in the Hepting litigation and others, there is no

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indication the administration would even attempt to limit it

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to communications between U.S. persons and persons overseas.

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As noted in the USA Today report, this program, intentionally

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and by design, "reaches into homes and businesses across the

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nation by amassing information about the calls of ordinary

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Americans - most of whom aren't suspected of any crime."

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Leslie Cauley, “NSA Has Massive Database of Americans' Phone

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Calls,” USA Today (May 11, 2006).

As James Bamford, author

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of The Puzzle Palace, explains it, “[d]espite the low odds of

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having a request turned down, President Bush established a

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secret program in which the N.S.A. would bypass the FISA

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court and begin eavesdropping without warrant on Americans.

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This decision seems to have been based on a new concept of

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monitoring by the agency, a way, according to the

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administration, to effectively handle all the data and new

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information. At the time, the buzzword in national security

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circles was data mining: digging deep into piles of

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information to come up with some pattern or clue to what

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might happen next. Rather than monitoring a dozen or so

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people for months at a time, as had been the practice, the

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decision was made to begin secretly eavesdropping on

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hundreds, perhaps thousands, of people for just a few days or

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a week at a time in order to determine who posed potential

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threats. Those deemed innocent would quickly be eliminated

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from the watch list, while those thought suspicious would be

21

submitted to the FISA court for a warrant.” James Bamford,

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“Private Lives: The Agency That Could Be Big Brother,” The

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New York Times, (Dec. 25, 2005).

 

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In at least two lawsuits, plaintiffs allege that the NSA

25

and major telecommunications providers set up equipment and

26

procedures to engage in domestic call monitoring. See, e.g.,

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Complaint, McMurry v. Verizon Communications Inc., 06 CV 3650

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(S.D.N.Y) (alleging that the NSA asked AT&T to help it set up

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a

domestic call monitoring site seven months before the

2

September 11, 2001 attacks); Andrew Harris, “Spy Agency

3

Sought U.S. Call Records Before 9/1, Lawyers Say,” Bloomberg

4

(June 30, 2006); Hepting v. AT&T, No. 06-0672 VRW (N.D.

5

Cal.). Mark Klein, the AT&T technician and whistle-blower

6

referred to above in this memo who witnessed the building of

7

a

secret room for NSA equipment, stated that "[i]t appears

8

the NSA is capable of conducting what amounts to

9

vacuum-cleaner surveillance of all the data crossing the

10

Internet, whether that be by people's e-mail, Web surfing or

11

any other data." (Emphasis added.) David Kravets,

12

“Whistle-Blower Says AT&T Gave NSA Access to Network,”

13

Associated Press (April 14, 2006) See also, The Puzzle

14

Palace, at 318-19 (explaining that because of NSA's

15

"vacuum-cleaner" approach to intelligence collection, which

16

involves gathering the maximum amount of telecommunications

17

data and then filtering it, "if an organization is targeted,

18

all its members' communications to, from or even mentioning

19

the individual are scooped up.").

 

20

 

Mr. Klein also reported that he was told by other AT&T

21

technicians that similar "secret rooms" were constructed in

22

other locations, including San Jose, Los Angeles, San Diego,

23

and Seattle.

 

24

 

25

26

27

28

Motion for production of evidence of domestic surveillance and spying

 

17

 

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1

2.

The NSA Program Captures Privileged Communications

2

The NSA Program has apparently intercepted privileged

3

attorney-client communications. Indeed, there are

4

indications that the NSA Program's protocols do not call for

5

distinguishing privileged from non-privileged communications.

6

In response to inquiries from Congress, the Justice

7

Department stated that "[a]lthough the [NSA] program does not

8

specifically target the communications of attorneys or

9

physicians, calls involving such persons would not be

10

categorically excluded from interception" as long as they

11

satisfied the other criteria. Letter from William Moschella

12

to F. James Sensenbrenner, Attachment "Responses to Joint

13

Questions from House Judiciary Committee Minority Members,"

14

45, at 15 (March 24, 2006) at

 

15

http://fas.org/irp/agency/doj/fisa/doj032406.pdf).

16

Sadly, privileged communications have in fact been

17

intercepted and apparently used. In Al-Haramain Islamic

18

Foundation, Inc., et al. v. Bush, et al., CV 06 274 MO (D.

19

Oregon), the plaintiffs have alleged that in March and April

20

2004, the NSA Program targeted and captured electronic

21

communications between Al-Haramain, a Saudi charity (in the

22

person of its Director, who was in Saudi Arabia) and two of

23

its lawyers in the United States. See Al-Haramain, Complaint

24

at 19. The Complaint also alleges that NSA provided logs of

25

those intercepted conversations to the U.S. Treasury

26

Department's Office of Foreign Asset Control, which in turn

27

relied upon them in designating Al-Haramain a "specially

28

designated global terrorist" in September 2004. Id. at

Motion for production of evidence of domestic surveillance and spying

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1

20-21.

2

The plaintiffs' suspicions that the lawyers'

3

communications had been intercepted were based on documents

4

Treasury provided to Al-Haramain's lawyers in May, 2004 in

5

connection with Al-Haramain's challenge to OFAC's freeze of

6

Al-Haramain's assets in February of that year. It appears

7

from the public record that Treasury officials provided the

8

logs of the intercepted calls, determined this was an error,

9

and demanded in November of 2004 that the documents, marked

10

"top secret," be returned. By that time, however, the

11

documents were also in the possession of a Washington Post

12

reporter, David Ottaway. Mr. Ottaway had not written

13

anything about them. Both Al-Haramain's lawyers and Mr.

14

Ottaway complied with Treasury's demand. See Carol Leonnig,

15

“Paper Said to Show NSA Spying Given to Post Reporter in

16

2004", The Washington Post (March 3, 2006). The Justice

17

Department has also indicated, in the ACLU v. NSA litigation,

18

that "some plaintiffs might have more reason to be concerned

19

than others. Lawyers who represent suspected terrorists, he

20

said, 'come closer to being in the ballpark of the terrorist

21

surveillance program.'" See Adam Liptak, “Arguments on Spy

22

Program Are Heard by Federal Judge,” The New York Times (June

23

13, 2006).

24

25

26

27

28

Motion for production of evidence of domestic surveillance and spying

19

 

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1

3.

The Government Uses the NSA Program or Other Programs to Conduct Warrantless Surveillance and

2

Maintain Databases of Political Dissidents

3

Through media reports and Congressional hearings, it has

4

become clear that there are likely still other warrantless

5

electronic surveillance programs that have not been

6

disclosed. On February 6, 2006, Attorney General Gonzalez

7

testified before the Senate Judiciary Committee concerning

8

the "Terrorist Surveillance Program" that the President had

9

publicly disclosed. In part, he reiterated the

10

administration's previous statements that the only

11

communications involving anyone in the United States that

12

were being monitored were those involving at least one person

13

outside the United States and in which there was reasonable

14

grounds to believe that one party is an agent of Al Qaeda or

15

an affiliated terrorist organization. See Transcript, U.S.

16

Senate Judiciary Committee Holds a Hearing on Wartime

17

Executive Power and the NSA's Surveillance Authority, Part I

18

of IV, washingtonpost.com (February 6, 2006) at

19

http://www.washingtonpost.com/wp-dyn/content/article/2006/02/

20

06/AR2006020600931.html.

 

21

Weeks later, the Attorney General issued a letter to

22

Sen. Arlen Specter in which he carefully limited his remarks

23

to "the Terrorist Surveillance Program as described by the

24

President." Letter from Atty. Gen. Alberto Gonzales to Sen.

25

Arlen Specter, at 4 (February 28, 2006). He stated that he

26

"did not and could not address … any other classified

27

intelligence activates." Id. See also Charles Babbington

28

and Dan Eggen, “Gonzales Seeks to Clarify Testimony On

Motion for production of evidence of domestic surveillance and spying

20

 

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1

Spying; Extent of Eavesdropping May Go Beyond NSA Work,” The

2

Washington Post (March 1, 2006); Shane Harris, “NSA Program

3

Broader Than Previously Described,” National Journal (March

4

17, 2006).

5

Finally, in subsequent testimony before the House

6

Judiciary Committee, Mr. Gonzales was asked directly whether

7

he could rule out purely domestic warrantless surveillance

8

between two Americans. Mr. Gonzales responded "I'm not going

9

to rule it out …" House Judiciary Committee Members'

10

Questions for Attorney General Gonzalez on the NSA

11

Warrantless Surveillance Activity (April 6, 2006) at p.7 at

12

http://www.house.gov/lofgren/nsa_testimony_

 

13

from_Gonzales.pdf. See also Mark Sherman, “Gonzales Draws

14

Criticism From Panel Chief,” The Associated Press (April 6,

15

2006); Dan Eggen, “Gonzales: Bush Could Order Domestic

16

Wiretaps,” The Washington Post (April 6, 2006).

17

In addition to uncovering the NSA's Program, the media

18

has disclosed surveillance activities of other agencies. The

19

Pentagon has reportedly been involved in assembling databases

20

to track political dissidents within the United States. As

21

reported in The Wall Street Journal, based on documents

22

reviewed by its reporters, the Pentagon has monitored the

23

activities of more than 20 antiwar groups around the country

24

over the past three years. "It has reviewed photographs and

25

records of vehicles and protestors at marches to see if

26

different activities were being organized by the same

27

instigators." Robert Black & Jay Solomon, “Pentagon Steps Up

28

Intelligence Efforts Inside U.S. Borders,” The Wall Street

Motion for production of evidence of domestic surveillance and spying

21

   

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Page 22 of 34

1

Journal (April 27, 2006). According to the article, the

2

Department of Defense's Counter Intelligence Field Activity

3

program has also been "data-mining" through its "Threat and

4

Local Observation Notice" ("TALON") reporting process. Id.

5

See also Ted Bridis, “ACLU Says FBI Misused Terror Powers,”

6

The Associated Press (December 20, 2005) (explaining that the

7

FBI launched a domestic terrorism investigation against

8

People for the Ethical Treatment of Animals because it was

9

"'suspected of providing material support and resources to

10

known domestic terrorism organizations,' including the [ALF]

11

and [ELF].").

 

12

IV.

BACKGROUND ON GOVERNMENT ALLEGATIONS OF TERRORISM IN THIS CASE

13

 

14

 

The defendant in this case is charged with conspiracy to

15

commit arson. The government, through their press releases

16

and press conferences, has made it abundantly clear, however,

17

that it considers the alleged acts at issue to be acts of

18

terrorism, and that it has pursued persons it believes to be

19

part of the ELF or ALF as terrorists.

It has made use of the

20

full panoply of terrorism-related investigative resources.

21

A.

Government Characterization of ELF and ALF as "Terrorist" Organizations

22

 
 

Government and law enforcement reports consistently

23

 

refer to actions claimed by ALF and ELF as "terrorism" and to

24

the perpetrators as "terrorists." See, e.g., U.S. Department

25

of Justice, Federal Bureau of Investigation, Terrorism

26

2000/2001, FBI Publication #0308 at

 

27

 

28

http://www.fbi.gov/publications/terror/terror2000_2001.htm#pa

ge_35 (noting, among other references to "terrorism" that

Motion for production of evidence of domestic surveillance and spying

22

 

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1

"[m]uch like terrorist groups of the past, animal rights and

2

environmental terrorists are adopting increasingly militant

3

positions with respect to their ideology and chosen tactics.

4

Terrorists who engage in criminal activity on behalf of these

5

causes have continued to distinguish themselves from their

6

counterparts in the mainstream animal welfare and

7

conservation movements, who oppose the inhumane treatment of

8

animals and environmental degradation but choose legal and

9

nonviolent means of opposition."). The Terrorism 2000/2001

10

publication lists incidents of property damage and arson

11

purportedly claimed by ELF and ALF on its comprehensive list

12

of "terrorism" incidents in the United States from 1990 to

13

2001, a list which includes the attacks of September 11, 2001

14

by Al Qaeda, the 1995 bombing of the federal building in

15

Oklahoma City, and the fatal anthrax mailings in the Autumn

16

of 2001. In its concluding statement, the FBI explains that

17

in December of 2001, it "merged the analytical resources of

18

its Investigative Services Division into the Counterterrorism

19

Division to improve its ability to gather, analyze, and share

20

critical national security information with the broader

21

Intelligence Community and the FBI's law enforcement

22

partners. At the beginning of the 21st century the problem

23

of terrorism has become a global one, and the FBI continues

24

to improve the capacity of its counterterrorism program to

25

accurately assess and effectively counter the dynamic variety

26

of domestic and international terrorist threats." Id.

27

In annual reports to Congress, FBI and Justice Department

28

officials have emphasized their view that the ALF and ELF

Motion for production of evidence of domestic surveillance and spying

23

   

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Page 24 of 34

1

constitute a terrorist threat. In 2004, John E. Lewis

2

testified in the Senate Judiciary Committee that over the

3

past several years, "special interest extremism, as

4

characterized by the [ALF], the [ELF], and related

5

extremists, has emerged as a serious domestic terrorist

6

threat. Statement of John E. Lewis, Deputy Asst. Dir.,

7

Counterterrorism Division, FBI, before the Senate Judiciary

8

Committee (May 18, 2004) at http://www.fbi.gov/congress/

9

congress04/lewis051804.htm (hereafter "Lewis 2004 Testimony).

10

The next year, Mr. Lewis told members of Congress that ELF

11

and ALF were "[o]ne of today's most serious domestic

12

terrorism threats." Statement of John E. Lewis, Deputy Asst.

13

Dir., Counterterrorism Division, FBI, before the Senate

14

Committee on Environment and Public Works (May 18, 2005) at

15

http://www.fbi.gov/congress/congress05/ lewis051805.htm

16

(hereafter "Lewis 2005 Testimony").

 

17

 

Most importantly, the U.S. Attorney has referred

18

directly to this defendant and this prosecution using the

19

term "terrorism." In a January 25, 2006 press conference

20

announcing the Indictment in this case, the U.S. Attorney

21

states just that.

 

22

B.

Government Use of the Joint Terrorism Task Force Resources

23

 
 

The government has also clearly indicated that it

24

 

employs the wide range of terrorism-related investigatory

25

resources at its disposal to investigate alleged acts of the

26

ELF and ALF. As explained by Deputy Assistant Director Lewis

27

in his Congressional testimony:

 

28

 

We draw on the resources of our Terrorist Financing

Motion for production of evidence of domestic surveillance and spying

 

24

 

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1

Operations Section to support field investigations into

2

domestic terrorism, just as we do for international terrorism

3

investigations. We also draw upon our expertise in the area

4

of communication analysis to provide investigative direction.

5

Second, we have strengthened our intelligence capabilities.

6

And we have developed an intelligence requirement set

7

for animal rights/eco-terrorism, enabling us to better

8

collect, analyze, and share information. Finally, we have

9

strengthened our partnerships. We have combined our expertise

10

and resources with those of our federal, state, and local law

11

enforcement partners nationwide through our 103 Joint

12

Terrorism Task Forces. We have increased training for JTTF

13

members and have strong liaison with foreign law enforcement

14

agencies. Lewis 2005 Testimony at

 

15

http://www.fbi.gov/congress/congress05/lewis051805.htm.

16

Documents provided to the defense in discovery are

17

equally plain that the Joint Terrorism Task Force resources

18

were employed in this investigation, and that this was, in

19

every practical and logical sense, a terrorism investigation,

20

as the FBI conceives of such.

 

21

V. DISCUSSION

22

The prosecutor plays a special role in the search for truth

23

in criminal trials. See Strickler v. Greene, 527 U.S. 263,

24

280 (1999). "The United States Attorney is the

25

representative not of an ordinary party to a controversy, but

26

of a sovereignty whose obligation to govern impartially is as

27

compelling as its obligation to govern at all; and whose

28

interest, therefore, in a criminal prosecution is not that it

Motion for production of evidence of domestic surveillance and spying

25

 

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Page 26 of 34

1

shall win a case, but that justice shall be done." Berger v.

2

United States, 295 U.S. 78, 88 (1935).

 

3

Consonant with the special role of the United States

4

Attorney, the Supreme Court held in Brady v. Maryland "that

5

the suppression by the prosecution of evidence favorable to

6

an accused upon request violates due process where the

7

evidence is material either to guilt or punishment,

8

irrespective of the good faith or bad faith of the

9

prosecution." Brady, 373 U.S. 83, 87 (1963). The duty

10

encompasses impeachment evidence as well as exculpatory

11

evidence, United States v. Bagley, 473 U.S. 667, 676 (1985),

12

and it covers information "known to the others acting on the

13

government's behalf in the case, including the police."

14

Kyles v. Whitley, 514 U.S. 419, 436-37 (1995).

 

15

The withholding of impeachment evidence violates the

16

strictures of Brady whenever the evidence is "material." As

17

explained in Bagley, impeachment evidence is material when

18

"if disclosed and used effectively, it may make the

19

difference between conviction and acquittal." Bagley, 473

20

U.S. at 676.

21

Rule 16(a) also addresses the government's duty to

22

disclose material to the defense: Fed. R. Crim. P. 16(a)(e)

23

requires the government to provide access to material "within

24

the government's possession, custody or control" where "(i)

25

the item is material to preparing the defense; (ii) the

26

government intends to use the item in its case-in-chief at

27

trial; or (iii) the item was obtained from or belongs to the

28

defendant."

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26

   

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1

A.

Government's Duty to Disclose the Existence of any NSA Surveillance

2

 

3

 

It has long been settled that a defendant has the right

4

to know whether his communications have been intercepted and

5

whether such interceptions contributed in any way to the

6

government's investigation and prosecution of the case

7

against him. See, e.g., Gelbard v. United States, 408 U.S.

8

41 (1972) (government required to inform grand jury witness

9

whether questions to be posed were the product of unlawful

10

electronic surveillance); Alderman v. United States, 394 U.S.

11

165 (1969) (government required to produce to defendant all

12

intercepts resulting from illegal electronic surveillance in

13

advance of evidentiary hearing). Justice Douglas, in a

14

prescient concurring opinion in Gelbard, stated that

15

“[t]oday's remedy assumes an added and critical measure of

16

importance for, due to the clandestine nature of electronic

17

eavesdropping, other inhibitions on officers' abuse, such as

18

the threat of damage actions, reform through the political

19

process, and adverse publicity, will be of little avail in

20

guarding privacy.” 408 U.S. at 67 (Douglas, J., concurring).

21

See also United States v. Coplon, 185 F.2d 629, 637-38 (2d

22

Cir. 1950).

 

23

 

That same concern is even more evidence today, in a

24

technologically advanced world, and where the NSA's

25

warrantless electronic surveillance program has thus far not

26

been authorized or supervised by a court of law - and where

27

the only court to have passed on its constitutionality has

28

rejected it and enjoined the government from continuing it.

Motion for production of evidence of domestic surveillance and spying

 

27

 

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1

Congress's focus is on prospective action, rather than

2

retrospective inquiry into the genesis and operation of the

3

NSA Program. And the administration has effectively shut

4

down other potential auditors, such as the Department of

5

Justice Office of Professional Responsibility, leaving the

6

courts as the sole vindicators of those whose rights have

7

been infringed by the NSA Program.

 

8

In Alderman, the Court faced essentially the same issue.

9

The defendants had been convicted, and while their appeals

10

were pending "it was revealed that the United States had

11

engaged in electronic surveillance which might have violated

12

their Fourth Amendment rights and tainted their convictions."

13

394 U.S. at 167. In its analysis, the Supreme Court framed

14

the issue, and the next necessary phase of the litigation, as

15

follows:

16

Such violation would occur if the United States unlawfully overheard conversations of a petitioner

17

himself or conversations occurring on his premises, whether or not he was present or participated in those

18

conversations. The United States concedes this much and agrees that for purposes of a hearing to determine

19

whether the Government's evidence is tainted by illegal surveillance, the transcripts or recordings of the

20

overheard conversations of any petitioner or of third persons on his premises must be duly and properly

21

examined in the District Court.

 

22

 

Alderman, 394 U.S. at 176. Further, the Alderman the Court

23

recognized that any fruits of such illegal electronic

24

surveillance would also be tainted. The question as stated in

25

Wong Sun v. United States, 371 U.S. 471, 488 (1963), is

26

"whether, granting establishment of the primary illegality,

27

the evidence to which instant objection is made has been come

28

at by exploitation of that illegality or instead by means

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28

 

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1

sufficiently distinguishable to be purged of the primary

2

taint." See also Nardone v. United States, 308 U.S. 338, 341

3

(1939). Id. at 180-81.

See also 394 U.S. at 176-77.

The

4

Court noted in that case that the government acknowledged its

5

responsibility to provide the defendants with the

 

6

surveillance information in order to permit litigation of the

7

issue:

8

The Government concedes that it must disclose to petitioners any surveillance records which are relevant

9

to the decision of this ultimate issue. And it recognizes that this disclosure must be made even though

10

attended by potential danger to the reputation or safety of third parties or to the national security - unless

11

the United States would prefer dismissal of the case to disclosure of the information.

12

Id. at 394 U.S. at 170-71.

 

13

 

The same inquiry and responses are necessary in this

14

case to determine whether communications of the defendants or

15

anyone else has played any role in the investigation or

16

prosecution of this case.

 

17

 

In at least five other cases, the Courts have compelled

18

the government to disclose whether the NSA Program

 

19

 

contributed in any way to the investigation or prosecution of

20

the particular cases. See, e.g., United States v. Al-Timimi,

21

Case No. 05-4761 (4th Cir. January 24, 2006) (remanding the

22

matter to the District Court for an evidentiary hearing, with

23

authority to "order whatever relief or changes in the case,

24

if any, it considers appropriate," although the case was

25

already on appeal); United States v. Abu Ali, Case No. CR

26

05-053, Order on Motion to Stay (E.D. Va. Feb. 17, 2006.);

27

United States v. Aref, Case No. 04 Cr. 402 (TJM) (N.D.N.Y.);

28

Turkmen v. Ashcroft, Case No. 02 CV. 2307 (JG) (E.D.N.Y.

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1

March 7, 2006); Al-Haramain Islamic Foundation, Inc., et al.

2

v. Bush, et al., CV 06 274 MO (D. Oregon).

 

3

In Abu Ali, the District Court ordered the government to

4

file with the court a declaration under oath of someone with

5

personal knowledge, the authority to speak on behalf of the

6

government, its intelligence agencies and contractors, and

7

who can definitively answer whether presidentially approved

8

warrantless interception of electronic communications

9

information was (1) used to obtain a warrant from the FISA

10

Court or (2) used in obtaining evidence that was presented to

11

the jury at trial.

See Abu-Ali, Order at 4.

The court in

12

that case specifically recognized the AUSA's assertion that

13

neither he nor anyone on the investigation team was aware of

14

any such information. Even accepting that at face value, the

15

court concluded that the prosecutors might now know of the

16

existence or use of such information. Id. at 3.

17

See also United States v. Libby, 2006 WL 574260, at *4-6

18

(D.D.C. March 10, 2006) (requiring Special Counsel to obtain

19

from other government agencies certain discoverable documents

20

and information, including those that might be classified).

21

In Al-Haramain, the Court not only ordered the government to

22

respond, but refused to permit the government to file its

23